Evans v Atar
[2013] VCC 82
•22 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02704
| JOHN EVANS | Plaintiff |
| v | |
| TAYLAN ATAR | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 February 2013 | |
DATE OF JUDGMENT: | 22 February 2013 | |
CASE MAY BE CITED AS: | Evans v Atar | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 82 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Injury to left index finger – disfigurement – loss of function – whether the disfigurement is “serious” – whether the pain and suffering consequences are “serious”
LEGISLATION CITED: Accident Compensation Act 1985, s134AB (38)(c)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Halpin v Wilson Transformer Co Pty Ltd [2012] VSCA 235; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26.
JUDGMENT: The Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Hutchinson | J N Zigouras & Co |
| For the Defendant | Mr D Myers | Minter Ellison |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 6 June 2012 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr B Hutchinson of Counsel appeared for the plaintiff and Mr D Myers of Counsel appeared for the defendant.
4 The injury suffered by the plaintiff for which leave is sought is an injury to the non-dominant left-hand.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 5-12 and 26-72: Exhibit A;
· The defendant tendered its Court Book (“DCB”), pages 1-13: Exhibit 1.
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has a suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.
(b) The disfigurement must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.
(c)The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.
(c) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being as least “very considerable”.
(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] I must be satisfied that the disfigurement and the consequences of the impairment satisfy the “very considerable” test. I have applied the principles set forth therein in reaching my conclusions in this application.
[1](2005) 14 VR 622, at paragraph 11
The Plaintiff's Background
8 The plaintiff was born in July 1949. He is now sixty-three years of age. He was born in Sydney, where he was educated, completing his Higher School Certificate in 1967. Subsequently, the plaintiff was employed in a number of different vocations.
9 In about 2009, the plaintiff commenced work with Australia Post as a mail officer. In about 2010, he was offered work by the defendant on the defendant’s goat farm. He worked in that employment with the defendant until he suffered injury on 16 April 2010.
The Injury and the Plaintiff's Medical Treatment
10 On 16 April 2010, the plaintiff was lowering a metal pipe into a cradle. The pipe slipped. The plaintiff attempted to prevent the pipe from falling. His hand became caught and was crushed between the pipe and the cradle. He suffered an obvious injury to his left index finger.
11 The plaintiff was taken from the scene of the incident to the Seymour Hospital. He was given some treatment by way of pain relief. He was subsequently transferred to the Northern Hospital where he was admitted as an inpatient. He underwent surgery on his left index finger. Two pins and a wire were placed in his left index finger to reduce the fractures. He was an inpatient at the hospital for three days.
12 The plaintiff was an outpatient at the hospital for the following six months. He was prescribed painkilling medication. He was given hand therapy and advice regarding exercise. He has not seen the operating surgeon, or any other medical practitioners at the Northern Hospital since his outpatient treatment ceased. He has not been prescribed any painkilling medication.
13 The most recent occasion he saw a medical practitioner for treatment for his left hand was on 19 December 2012 when he saw Dr Peterson, general practitioner, complaining of soreness in his left index and middle fingers. There is a reference in Dr Peterson's clinical notes of analgesia, but no reference to whether it was prescribed. According to the plaintiff, he has not received any prescriptions for medication since he was discharged as an outpatient.
14 The plaintiff’s present treatment is self-determined. He takes two Panadol between five to seven days per week for pain relief. He takes two Ibuprofen (an anti-inflammatory) at night before he goes to bed. He rubs Voltaren gel into his left index finger at night. The foregoing constitutes the plaintiff’s regime of pain relief.
The Medical Evidence
15 The plaintiff was examined by Mr Ireland, orthopaedic surgeon, on 11 September 2012. Mr Ireland examined x-rays taken of the plaintiff's left index finger on 16 April 2010 and 18 May 2011. The first x-ray showed a comminuted fracture involving the neck of the proximal phalanx of the left index finger with gross displacement and angulation of the fragments. The second x-ray, which was post surgical, showed a healing of the fracture in a malunited position with approximately 15 degrees of ulnar deviation and 10 degrees of extension and shortening of the proximal phalanx. There was no evidence of traumatic arthritis of the adjacent joints.
16 Mr Ireland examined the plaintiff's left hand and, in particular, his left index finger. He observed an obvious deformity in the left index finger and found that the active range of movement was reduced. He recorded the grip strength in the right hand at 40 kilograms, 42 kilograms and 40 kilograms, and on the left at 35 kilograms, 34 kilograms and 32 kilograms.
17 Mr Ireland concluded that the injury to the plaintiff’s left index finger had stabilised. He did not consider that there would be any deterioration. He did not consider that there was any evidence of traumatic arthritis of the adjacent joints. He did not consider that the plaintiff would require an amputation of the left index finger or consider that any other surgical treatment was really warranted.
18 Mr Stapleton, plastic and hand surgeon, examined the plaintiff on 2 June 2011. His examination and conclusions are broadly consistent with those of Mr Ireland. One matter on which he commented specifically was that the left index finger had lost 2 centimetres of its digital length.
19 Mr Ireland recorded that the plaintiff told him that he has an ache in his left index finger at the proximal interphalangeal joint. The plaintiff agreed that the sensation in his left index finger is mostly an ache. Mr Stapleton recorded that the plaintiff told him that he has no pain in the left index finger at rest. The plaintiff disagreed, and said that he has an aching sensation all the time.
20 The plaintiff did not adduce any other medical evidence. The defendant tendered the clinical notes of Dr Peterson. I have referred to some aspects of those clinical notes earlier in these reasons. They disclose very little relevant to the plaintiff's injuries.
21 I observed the plaintiff's left index finger at close range. I had him place both hands flat on the end of the witness box. I observed that, between the knuckle and the first joint of his left index finger, there is a discernible thickening. Beyond the first joint the rest of his left index finger appears to narrow, and is angled to the right. It is obviously shorter than his right index finger. During re-examination, the plaintiff was asked to make a fist. He could not close his left index finger fully – probably getting half way – leaving the left index finger in something of a fixed trigger position.
The Plaintiff's Consequences
22 The plaintiff swore two affidavits on 10 January 2012 and 30 January 2013. In addition, he was examined, cross-examined and re-examined. The following is a summary of what the plaintiff says he has lost and what he has retained in terms of pain and suffering and with respect to his pre-injury social, domestic and recreational activities:
· He has an aching sensation in his left index finger all of the time.
· He suffers pain in his left index finger as a consequence of the work he undertakes as a mail officer. During a shift he suffers increasing pain. At the end of a shift he is in pain. That is the reason why he takes Ibuprofen and uses Voltaren gel at night before he goes to bed.
· He suffers more pain if he knocks his left index finger. He described handling parcels at work. The pressure of the weight of the parcels on his left hand will increase the pain in his left index finger, as will the incident of knocking it.
· He has pain at night. It was not my impression that, after taking the Ibuprofen, his sleep was interrupted; that is, that he has woken by pain.
· In his first affidavit, he described difficulty with grip strength and, as a consequence, he dropped things like dishes when washing and drying up. However, when cross-examined, the single deficit in terms of kitchen duties seemed to be his difficulty in holding the handle of a cooking utensil such as a wok in his left hand.
· The plaintiff played golf once a month at the Kilmore Golf Club. He was not a member of the Club. He did not possess a golf handicap. He enjoyed the social aspect of golf.
· He used to attend a gymnasium. He is unable to do so any longer because he cannot use apparatus requiring manual activity.
· He is a keen skier and has continued skiing.
· He continues to undertake gardening and his household chores.
· He is presently working as a mail officer, working 5 to 6 hours per night. Although the plaintiff did not describe his average working week, I assume he works those hours over a standard five-day week.
Disfigurement
23 There is no doubt that the plaintiff's left index finger is disfigured. The disfigurement essentially comprises the description which I have given of my observation of it at close range, and the plaintiff's inability to fully close his left index finger into a fist.
24 At the distance I was sitting on the bench and from the witness box, it was obvious that the plaintiff's left index finger was disfigured. It was all the more obvious at close range.
25 Mr Hutchinson described the level of disfigurement as “grotesque”. I think to describe the disfigurement as grotesque is excessive and inconsistent what I observed at distance and at close range.
26 Making a judgment about disfigurement is very difficult. It is almost incapable of explicit reasoning and description. Despite that difficulty, it seems to me that the plaintiff has a left index finger which is obviously disfigured when a comparison is made with his right index finger, but I do not accept that it deserves the description “at least very considerable”. The disfigurement is deserving of being described as “significant”, but I would not put it any higher than that.
Impairment
27 Both Mr Hutchinson and Mr Myers referred me to Haden Engineering Pty Ltd v McKinnon;[2] Sutton v Laminex Group Pty Limited[3] and Halpin v Wilson Transformer Co Pty Ltd[4] for the purpose of demonstrating the sorts of characteristics which either support the conclusion that an impairment of a body function is or is not serious.
[2](2010) 31 VR 1
[3](2011) 31 VR 100
[4][2012] VSCA 235
28 I have read each of those decisions and I am acutely aware of the approach which is advocated by the Court of Appeal in Haden and Sutton, and of the particular facts of Halpin which Mr Hutchinson pressed on me as being a relevant yardstick to judge whether the plaintiff in this case has suffered a serious injury or not.
29 In Haden and Sutton, the Court of Appeal considered that the formula to follow in determining whether the pain and suffering consequences are serious necessitates considering not only what the plaintiff says about the pain in evidence and to medical practitioners, but also what the plaintiff did about the pain; that is, medication, rest, seeking medical treatment, as well as what doctors say about the extent and intensity of the plaintiff's pain and what the objective evidence shows about the disabling effect of the pain.[5] I have followed that formula in applying my mind to the evidence of the plaintiff and the medical evidence.
[5]Haden at 4-5, and also in Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 at paragraph 63
30 Whilst I accept that the plaintiff has an aching sensation in his left index finger all the time, and has pain when he knocks his left index finger, and pain at the end of a work shift, my impression is that the plaintiff is able to tolerate the aching and the pain in undertaking his work as a mail officer.
31 Whilst I accept that the plaintiff takes medication and uses Voltaren gel to obtain pain relief, it must be understood that this medication is significantly different from prescription medication which is often prescribed to injured workers who suffer persistent and intolerable pain. The plaintiff's medication regime must also be seen in the context that he has not had any medical treatment of any significance since he was discharged as an outpatient from the hospital.
32 The plaintiff has not lost his capacity for his pre-injury work. It was my impression that he can work his present hours, and could work increased hours. On the home front he has some difficulty cooking, but otherwise is able to undertake gardening and household chores. On the sporting and recreational front, he cannot play golf, but he played it relatively infrequently, once a month, or, to put it another way, about twelve times per year. It was my impression that he valued the social contact with his fellow players which is still open to him. He is able to ski. Skiing involves holding the ski stock fairly tightly which must impose the sorts of stresses and strains upon his left index finger which the plaintiff complained he can find intolerable.
33 My overall impression of the plaintiff is that he gave his evidence in a straightforward and entirely believable manner. Despite that, the conclusion I have reached is that the impairment of function is of some significance, but I would not put it as high as being significant or marked. I am not, therefore, persuaded that the impairment of the function of the plaintiff's left and non-dominant hand is “serious”.
Conclusion
34 On the basis of the foregoing reasons, findings and conclusions, I order that the plaintiff's Originating Motion be dismissed.
35 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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